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Holz v. Westphal

August 12, 2002

JOHN C. HOLZ, PLAINTIFF,
v.
JOSEPH W. WESTPHAL, DEFENDANT



The opinion of the court was delivered by: Oberdorfer, District Judge.

MEMORANDUM

Plaintiff John C. Holz ("Holz") sued Joseph W. Westphal, Acting Secretary of the United States Army ("the Secretary"), seeking to amend a record generated during an Army criminal investigation of him. The parties filed cross-motions for summary judgment. For the following reasons, an accompanying order grants summary judgment to Holz.

I. Background

The underlying facts of this case are not seriously disputed. On February 22, 1997, Holz, then an eighteen-year-old U.S. military dependent living with his family in Germany, was involved in a car accident. Holz drove one of the cars. The other driver was a German citizen who died at the scene. The accident occurred on German soil, away from any military installation. German and U.S. military police reported to the scene. German authorities arrested Holz and later charged him with negligent homicide.

Upon being contacted by the German police, local U.S. Army Criminal Investigation Divisions ("CID") officials in Germany began an investigation of the incident. On February 23, 1997, the day after the accident, the CID prepared an initial Report of Investigation ("ROI"). The ROI set forth the facts of the accident and indicated that the CID's investigation of them continued. Holz was "titled" in the ROI, meaning that his name was designated in its "subject block." The subject block also contained the notations "Fatal Traffic Accident" and "Negligent Homicide."

On April 22, 1997, the CID prepared a final ROI. The final ROI stated that the investigation of Holz's car accident "is being terminated ... in that the offenses were committed by a civilian, who is not subject to the UCMJ [Uniform Code of Military Justice], there are no violations of federal criminal statutes with which the person can be charged, and no other U.S. Army interest exists." The final ROI further noted that Holz "has been charged by the local German prosecuting attorney, and is pending adjudication." Holz was titled in the final ROI. The notations "Fatal Traffic Accident" and "Negligent Homicide" were also retained in the subject block of the final ROI.

The inclusion of Holz's name in the ROI's subject block is the source of the dispute in this case. Department of Defense regulations state that an individual is titled in a ROI if there has been "a determination that credible information exists that a person or entity may have committed a criminal offense or is otherwise made the object of a criminal investigation." Department of Defense Instruction ("DODI") 5505.7 ¶ 4.3.*fn1 When an individual is titled in a ROI, his or her name is indexed in the Defense Clearance and Investigations Index ("DCII"), "a computerized central index of investigations for all [Department of Defense] investigative activities." Id. ¶ 4.2. "The primary purpose for titling and indexing an individual or entity as the subject of a criminal investigation is to ensure that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes." Id. ¶ 4.1. Neither the initial ROI prepared in February 1997 nor the final ROI prepared in April 1997 contain an express determination that either "credible information" or "probable cause" existed to warrant Holz's name being designated in the ROI's subject block.

Holz's prosecution in Germany for negligent homicide was ultimately transferred to a juvenile court. On September 22, 1997, the German court dismissed the case against Holz conditioned upon his making a financial contribution to the Red Cross. This dismissal did not result in a conviction, and the records, because they pertain to a juvenile, are sealed.

In April 1998, Holz requested that the Army remove his name from the ROI's subject block. Phillip McGuire, Director of the U.S. Army's Criminal Records Center, officially denied this request in a letter dated November 9, 1998. The denial letter, which constituted a final agency action, noted that under Department of Defense regulations, an individual's name will be deleted from the subject block of a ROI "in the case of mistaken identity; i.e., the wrong person's name is entered ... as opposed to the fact that the person is found not to have committed the offense under investigation or that the offense did not occur." DODI 5505.07 ¶ 6.4.2.*fn2 The letter continued that because Holz had not shown that the inclusion of his name in the subject block could be attributed to mistaken identity, he was not entitled to the amendment he sought.

Meanwhile, in July 1998, the FBI entered information from the ROI into its criminal history database, resulting in a FBI report listing Holz as the subject of the offense of negligent homicide and excessive speed. By written request of the Army, Holz's name was removed from the FBI database in October 1998.

Holz filed this lawsuit on September 18, 2000, seeking the removal of his name from the ROI's subject block under the Privacy Act, 5 U.S.C. § 552a et seq., and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Holz alleges that by titling him, the Army created a permanent criminal history suggesting he committed negligent homicide, despite the fact that the only legal proceedings to result from his car accident resulted in no finding of guilt. This, Holz continues, disqualified him from receiving a ROTC scholarship and from pursuing a career in criminal justice.

II. Discussion

Both Holz and the Secretary now seek summary judgment on Holz's claims. Summary judgment is appropriate where the pleadings, depositions, and affidavits on file show that there is no genuine issue of material fact in dispute and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The facts set forth above are not seriously disputed. Instead, the primary dispute in this case is whether ...


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